THE FREE EXERCISE TEST
AFTER EMPLOYMENT DIVISION v SMITH
1. Does the government regulation condition the availability of state benefits upon an applicant's willingness to work under conditions forbidden by his religion? (If so, as Sherbert v Verner and other cases hold, the regulation must be narrowly tailored to support a compelling state interest.) 2. Does the law apply to religiously motivated conduct which is also subject to a degree of protection under other provisions of the Constitution (such as the directing of the education of children by their parents might be protected by substantive due process)? (If so, in these "hybrid cases" such as Yoder v Wisconsin, the law must be narrowly tailored to support a compelling state interest.) 3. Does the law punish one because of his or her religious status (e.g., a law prohibiting members of the clergy from running for state electoral office)? (If so, the law violates the Free Exercise Clause unless the state can show it is supported by a compelling state interest and is narrowly tailored.) 4. Does the law target religious conduct (e.g., a law prohibiting bowing down in front of golden calves) or, as applied, has the government demonstrated hostility towards religion (e.g, have officials treated religious claims less favorably than non-religious claims)? (If so, the law violates the Free Exercise Clause unless the state can show the law is supported by a compelling state interest and is narrowly tailored.) [Master Cakeshop v Colorado Civil Rights Comm'n (2018)] 5. For all other generally applicable, and neutrally applied, criminal laws that apply to religiously-motivated conduct, the law need only have a rational basis. [Employment Division v Smith (1990)] |